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COMMONWEALTH v. MILLS (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
MILLS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Franklin County, No. 144 of 1973, in case of Commonwealth of Pennsylvania v. Roy Cecil Mills.

COUNSEL

Kenneth E. Hankins, Jr., with him Martin, Bittle & Hankins, for appellant.

Edwin D. Strite, Jr., First Assistant District Attorney, with him John R. Walker, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Hoffman, J., concurs in the result.

Author: Price

[ 235 Pa. Super. Page 175]

Appellant was found guilty, by a jury, of operating a motor vehicle while under the influence of intoxicating liquor.*fn1 Following the denial of post-trial motions, appellant was sentenced to pay a fine of $200 and to undergo imprisonment in the Franklin County Prison for a period of not more than 15 days. Appellant raises two points of alleged error, both of which were properly preserved for this appeal. We find no merit to appellant's contentions and will, therefore, affirm the judgment of sentence of the lower court.

The facts indicate that at approximately 11:00 p.m. on March 22, 1973, Officer Russell C. Weikert of the Waynesboro Police Department was informed of a two-car accident at a railroad crossing on West Third Street in the Borough of Waynesboro. Officer Weikert arrived on the scene and began to make a routine investigation to determine what had happened. Mr. Robert G. Sholty identified himself as the operator of one of the vehicles, and appellant identified himself as the operator of the other.

From the location of the debris, the officer concluded that the collision had occurred approximately three feet south of the center line of West Third Street, i.e., at a point three feet inside the eastbound lane of traffic. At the point of impact, the street is approximately 40 feet wide, straight, and in good condition. Mr. Sholty had been proceeding in an easterly direction and the appellant had been proceeding in a westerly direction.

When the officer first observed appellant, he was leaning against the side of his vehicle. Appellant was asked for his operator's license and the registration card for the car. Appellant gave the registration card to the officer, but had some difficulty in producing his operator's license. He attempted to hand his wallet to Officer Weikert,

[ 235 Pa. Super. Page 176]

    who refused to accept it. After again being requested to produce his operator's license, appellant gave the officer a Maryland operator's license. The appellant's Pennsylvania registration card had been validated approximately five months earlier, and the officer questioned appellant on his failure to have a current Pennsylvania operator's license.

Officer Weikert noticed during this time that appellant's speech was slurred, that there was a strong odor of alcohol coming from appellant, and that appellant did not stand erect but rather constantly propped himself against his car or the police cruiser. The officer concluded that appellant was under the influence of alcohol, and arrested him for driving in that condition. Appellant was informed of his constitutional rights and asked if he would submit to a blood alcohol test. Appellant answered in the affirmative, and he was taken to the Waynesboro Hospital where the blood test was performed. At no time did the officer have an arrest warrant or a search warrant.

A preliminary hearing was held in the office of the Justice of the Peace on April 19, 1973. The magistrate determined there was sufficient evidence to hold appellant for court. On May 1, 1973, appellant presented a pretrial application to dismiss the action and to suppress the evidence. Appellant was indicted on May 7, 1973, and on May 18, 1973, the court granted appellant's application for the suppression of the blood test but denied the ...


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